COX, S.J., announced the judgment of the
Court and delivered an opinion in which CRAWFORD, C.J., joined. GIERKE,
J., filed an opinion concurring in the result. SULLIVAN and EFFRON, JJ.,
each filed a dissenting opinion.

Senior Judge COX announced the judgment of the
Court and delivered an opinion in which Chief Judge CRAWFORD joined.

Appellant’s contention is that the Court of
Criminal Appeals, after finding that appellant had served 11 days of illegal
pretrial confinement, erred in failing to reduce his sentence sufficiently
to effect meaningful compensation.1
On initial appeal before that court, appellant claimed, for the first time,
that 11 of his 142 days of pretrial confinement were served under conditions
so unnecessarily onerous as to constitute illegal pretrial punishment;
and the court ultimately agreed.2
Appellant contends that the court should have set aside his bad-conduct
discharge; however, in reassessing sentence, the court declined to do so.
We are satisfied that the court did not abuse its discretion in this regard,
and we affirm.

Appellant was tried by a general-court martial,
military judge alone, at Marine Corps Base, Camp Pendleton, California.
Pursuant to a pretrial agreement, he pleaded guilty to using amphetamine/methamphetamine;
possessing and distributing methamphetamine; and violating federal law
by using a telephone to facilitate a drug distribution.3
In exchange for the pleas, the Government did not go forward with the prosecution
of other drug offenses also referred to that court-martial.

On August 19, 1997, the military judge sentenced
appellant to reduction to E-1, total forfeitures, confinement for 30 months,
and a bad-conduct discharge. The judge specifically awarded appellant day-for-day
credit against sentence to confinement for the 142 days appellant served
in pretrial confinement. On January 12, 1998, after considering several
posttrial submissions by the defense, the convening authority approved
the sentence and, in accordance with the pretrial agreement, suspended
confinement in excess of 24 months.

After being granted at least eight motions
for enlargement of time to file pleadings by the Court of Criminal Appeals,
appellant, through counsel, filed an initial Brief and Assignment of Error
with that court on January 6, 1999. On the same date, he moved to attach
certain documents to the record.

The Government responded on March 5, 1999,
after requesting and receiving a 1-month enlargement of time.

The Court of Criminal Appeals rendered its
opinion on March 31, 1999. By that time, several things had changed. First,
as a consequence of the credit he received for pretrial confinement and
the good time credit he received in posttrial confinement, appellant had
completed his service of confinement. Thus, there was no way the court
could meaningfully shorten time served.

Second, by operation of Article 58a, UCMJ,
10 USC § 858a, and § 0152 of the Manual of the Judge Advocate
General of the Navy, any sentence that included either a punitive discharge
or confinement in excess of 3 months automatically reduced appellant’s
pay grade to E-1. Thus, unless the Court of Criminal Appeals were to both
set aside appellant’s punitive discharge and reduce his confinement
(theoretically) to 3 months or less, there was no way the court could mitigate
rank reduction.

Third, by operation of Article 58b, UCMJ, 10
USC § 858b, any sentence that included either confinement for more
than 6 months or a punitive discharge automatically resulted in total forfeitures.
Thus, unless the Court of Criminal Appeals were to both set aside
appellant’s punitive discharge and reduce his confinement (theoretically)
to 6 months or less, there was no way the court could mitigate forfeitures.

In fact, what the Court of Criminal Appeals
purported to do was compensate appellant for the 11 days by reducing his
forfeitures from total to $600 pay per month for 30 months. However, because
appellant’s forfeitures were total by operation of Article 58b, the purported
reduction had no positive effect for appellant.

What went wrong here? First, of course, was
the brig policy that created the unreasonable conditions.4
Apparently this policy came to light in another case out of that same jurisdiction,
and portions of that record of trial, along with appellant’s affidavit,
were among the documents received by the Court of Criminal Appeals as appellate
exhibits.

On the other hand, as appellant notes in his
affidavit dated January 5, 1999, "Until recently, I was unaware that the
brig’s conduct was improper. Had I known, I certainly would have informed
my counsel and would have raised this issue at trial."

So what was the Court of Criminal Appeals to
do with the case in that posture? Appellant was caught using and dealing
drugs. In the pretrial agreement, he sought to cap his confinement at 24
months if he received a punitive discharge. In compensation for 11 days
of unduly restrictive, but by no means barbaric, confinement, must the
Court of Criminal Appeals have awarded appellant a sentence more appropriate
to a short absence without leave?

Certainly the brig personnel, and possibly
others, are to be faulted for their failure to conform to legal requirements.
But the time to deal with this type of lapse was up front, at trial, when
it could be appropriately remedied. After United States v. Rexroat,
38 MJ 292, 294 (CMA 1993), where we applied to the military County of
Riverside v. McLaughlin, 500 U.S. 44 (1991)(magistrate’s probable cause
review more than 48 hours after arrest is presumptively untimely), such
instances of undiscovered, unremedied, illegal pretrial confinement should
be extremely rare.5

Where an accused has failed to bring illegal
pretrial confinement conditions to the attention of a magistrate, as here,
we have declined to invoke formal waiver. United States v. Huffman,
40 MJ 225, 227 (CMA 1994). Nevertheless, as the instant facts reveal, a
change in circumstances from the time a matter should have been raised
to a time much later often has a major impact on what arrows a given court
or authority will have in its quiver.

Under the circumstances, we are satisfied that
the Court of Criminal Appeals did not abuse its discretion in declining
to set aside the punitive discharge or otherwise massively reduce the various
sentence components. SeeUnited States v. Jones, 39 MJ 315,
317 (CMA 1994); United States v. Dukes, 5 MJ 71, 73 (CMA 1978).
The relief appellant seeks (a product of his own prior inaction), in comparison
with the discomfiture he may have endured for 11 days, does not reasonably
appear to be proportionate or appropriate.6

The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.

2
Appellant did receive day-for-day credit for all 142 of his days spent
in pretrial confinement, including the 11 days served under unnecessarily
onerous conditions. However, having not brought the matter to the attention
of the trial court, appellant was not awarded any extra credit for the
11 days. SeeUnited States v. Suzuki, 20 MJ 248 (CMA 1985).

4
The precise contours of the policy are not here in issue, as the lower
court held for appellant in this regard. Suffice it to say, the brig had
a policy of unduly restrictive pretrial confinement for those facing lengthy
potential punishments; and as the case stood at the charging stage, appellant
readily fit that criterion.

5
Appellant does not suggest that his pretrial confinement was not promptly
reviewed by a magistrate, or that he complained to the magistrate about
the conditions of his confinement.

6
We cannot entertain our dissenting Brothers’ creative remedial proposals.
Appellant neither on brief or in oral argument claimed that the Court of
Criminal Appeals could "treat" undeferred punishment as deferred, and thus
direct that dollars be put into appellant’s pocket. Nor did appellant inform
us just how much of a reduction in confinement would have allowed him to
serve a few days in pay status at the back end of his confinement, and
exactly under what circumstances the Court of Criminal Appeals could order
the military to return him to a duty status from appellate leave. The fact
is, appellant came to our Court asking for none of this. All he wanted
was that his bad-conduct discharge be set aside. Our dissenting brothers
want us to grant appellant a speculative remedy that he has not asked for,
that has not been briefed, and that the opposing party has not had an opportunity
to respond to. We decline to do so.

GIERKE, Judge (concurring in the result):

I concur in the result and write separately
only to note my adherence to the position I took in United States v.
Huffman, 40 MJ 225, 228-29 (CMA 1994).

SULLIVAN, Judge (dissenting):

The granted issue in this case is:

WHETHER THE LOWER COURT ERRED IN FINDING
ERROR AND THEN AWARDING WHAT AMOUNTED TO SHAM RELIEF BECAUSE THAT
RELIEF IS EFFECTIVELY NULLIFIED BY THE AUTOMATIC FORFEITURE PROVISION OF
ARTICLE 58b, UCMJ.(Emphasis added.) Appellant appealed his convictions
to the court below on the grounds of illegal pretrial punishment. In its
decision, the lower court stated:We have carefully examined the record of
trial, appellant’s assignment of error that he was illegally punished prior
to trial and the Government’s response. We conclude that the appellant’s
assignment of error has merit and he is entitled to relief. . .
. We will take corrective action in our decretal paragraph.Unpub. op. at 1-2 (emphasis added). In that decretal
paragraph, the lower court focused its relief on the forfeiture portion
of appellant’s sentence and, in effect, reduced the forfeitures from $1,050
pay per month to $600 pay per month for 30 months. This resulted in apparent
monetary relief to appellant of $13,500. However, the relief was illusory
because, by operation of an automatic forfeiture of pay statute, Article
58b (an authority not mentioned in the lower court’s opinion), appellant
received no benefit from the court’s order of relief.

Was this "sham relief"? Was the lower court
not aware of Article 58b and its statutory effect on the forfeiture portion
of appellant’s sentence when the lower court gave its apparent reduction
of $13,500 in forfeitures? Did the lower court make a mistake when it said
it was giving relief to appellant, and yet it appears that the "relief"
amounted to no relief? I would remand this case to the lower court. A remand
would allow that court to directly confront these questions and to explain
what actual "relief" was meant in its decision. SeeUnited States
v. Suzuki, 14 MJ 491, 493 (CMA 1983), aff’d in part and rev’d in
part, 20 MJ 248 (CMA 1985). Our system of justice is best served if
unanswered questions like these are cleared up in the eyes of the appellant
and the public. In addition, on remand, the lower court could also consider
the well-reasoned relief proposed by my Brother, Judge Effron, in his excellent
separate opinion which analyzes the type of appropriate relief which could
be given to appellant.

EFFRON, Judge (dissenting):

I would set aside the decision below and remand
the case to the Court of Criminal Appeals for consideration of the options
for appropriate relief under Article 58b, Uniform Code of Military Justice,
10 USC § 858b. Appellant's request in this case is for "meaningful
relief." SeeUnited States v. Pierce, 27 MJ 367 (CMA 1989).
Although appellant has requested that his bad-conduct discharge be set
aside, he has not taken an "all-or-nothing" position that forecloses other
meaningful relief. The lead opinion takes too narrow a view of the law
when it concludes that Article 58b prevents any relief in this case simply
because it views setting aside the discharge as disproportionate and inappropriate.

If we were to remand this case, the court below
could consider the option of treating the first 11 days of confinement
as deferred. Under Article 58a, this would provide appellant modest, but
meaningful relief in the form of 11 days' pay. Moreover, depending upon
the relationship between the end of appellant's confinement and the expiration
of his service obligation, it is possible that the lower court could reduce
his approved confinement by 11 days so that the last 11 days of confinement
served would be in a pay status. Upon careful briefing by the parties and
review by the court below, there may well be other options that could provide
appellant with meaningful but not disproportionate relief, in view of the
conclusion of the court below that appellant was entitled to a remedy for
11 days of illegal pretrial confinement.